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Sickness, sickness everywhere, nor any cure in sight

Benjamin Franklin once said that a person should “be not sick too late, nor well too soon.” However, what happens when an employee is sick too soon and well... well, never?

That was precisely the question an arbitrator in British Columbia was forced to confront in Loblaws Cos. and UFCW, Local 247 (P.(J.)), Re, [2014] B.C.W.L.D. 2088. A unionized employee was terminated for non-culpable absenteeism after she missed between 10 per cent and 17 per cent of her work days over a roughly three year period, beginning in 2010. By comparison, her workplace averaged between two per cent and five per cent. The reasons for her absences included, but were not limited to, an “ulcer” that was never diagnosed as an ulcer, “cancer” that was never diagnosed as cancer, a hysterectomy, allergies, bronchitis, eye issues and constipation. The employee grieved the dismissal.

The employer argued that the employee’s absences were excessive and that she had been given ample opportunity to curb her absenteeism through a three-step Attendance Support Program. The employee responded by saying that her employment history between 1998 and 2010 was otherwise acceptable and that her health issues could be properly managed, thus facilitating a return to work.

HOW THE “NEVER WELL EMPLOYEE” IS TREATED UNDER THE LAW

The arbitrator provided a summary of the law on non-culpable absenteeism that should assist any Atlantic Canadian employer facing a similar issue. The fundamental idea behind non-culpable absenteeism is that absences that are “extremely excessive” in number can result in discharge even when the employee is not at fault. Although the employer is ordinarily expected to bear the losses of such absences, there is a threshold that, when crossed, justifies termination. There is no hard and fast rule on where that threshold lies, but a comparison with the rest of the workplace is a good place to start. Be warned though, exceeding the average does not automatically qualify as excessive, but any outliers should become apparent and should be followed up on in accordance with an attendance management program.

The nuances do not end there. Even if an employee’s absences are excessive, the employee must also be deemed incapable of achieving regular attendance in the future. Again, there is no standard way to prove this, but medical evidence about the employee’s prognosis, efforts by the employee to correct any underlying issues, and a thorough analysis for the reason behind the absences if they are non-medical all becomes relevant at this stage. An arbitrator will be looking for “some evidence of a foreseeable likelihood” of increased attendance in the future, and a commitment by the employee to deliver on that likelihood, before overturning a dismissal.

However, even that is not the end of things. If the excessive absenteeism is a new development in an otherwise regular attendance record, dismissal may be an excessive response. As one would expect, the longer an employee has worked without any issues, the more forgiving the employer and an arbitrator should be. The implication in this case was that a nearly three year stretch of excessive absences could have been forgiven if her prior 12 years of service were free of noteworthy absences. One should not use these numbers to guide an evaluation of every employee, but the point is that a long-term employee with a prior history of regular attendance is less deserving of dismissal than a more junior employee or one with a consistently spotty record.

The arbitrator ultimately decided that this employees’ dismissal was warranted. First, her absentee rate was enough over the average to be considered excessive. Second, the arbitrator was not convinced that the medical evidence showed a foreseeable likelihood of returning to normal attendance. Finally, although the employer’s attendance management program was not definitive, the fact that the employee consistently triggered its warnings weighed heavily on the arbitrator’s mind.

WHAT THIS MEANS FOR YOUR WORKPLACE

The takeaway point is that dismissal for non-culpable absenteeism is a delicate and complex issue that should be handled cautiously. There is no shortage of factors that may seem immaterial on the surface, but in actuality could sway an arbitrator one way or the other. This is a point of law where the dreaded “it depends” evaluation is alive and well, and so dismissal on this basis should be reserved when the employer has a defined Innocent Absenteeism Program, consistently applied and has multiple steps.

It might be tempting to say that an employee’s consistent absenteeism has caused a great deal of strife, time and money at the expense of the employer; however, “consistent” or slightly “above-average” is not enough. Dismissal without a reason is not to be taken lightly – there must be, at a minimum, sickness sickness everywhere, nor any cure in sight before an employee’s absences due to illness support a termination.